SECOND AMENDMENT TO CUSTODY AGREEMENT
SECOND AMENDMENT TO
This Second Amendment (the “Amendment”) is made on this 20th day of October, 2021 to the Agreement, dated as of December 18, 2007 (the “Agreement”), by and between the Xxxxxx Investment Trust, a Delaware statutory trust (the “Fund”), on behalf of each of its Series listed on Schedule II hereto, and The Bank of New York Mellon (formerly The Bank of New York), a bank organized under the laws of the state of New York (“Custodian”). Capitalized terms used herein and not otherwise defined shall have the respective meanings ascribed to such terms in the Agreement.
WHEREAS, the parties may amend the Agreement pursuant to Article X, Section 6 by a written instrument executed by the parties; and
WHEREAS, the Fund and Custodian desire to amend the Agreement as set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in consideration of the agreements hereinafter set forth, the Agreement is hereby amended as follows:
- Article I, Section 1 is hereby amended and restated as follows: “Administrator” shall mean Ultimus Fund Solutions, LLC and its successors or permitted assigns, in its role as custody administrator.
- Article VIII, Sections 6 and 7 are hereby amended and restated as follows:
6. Custodian shall be entitled to receive and the Trust agrees to pay to Custodian all reasonable out-of-pocket expenses and such compensation as referenced in Appendix II between Custodian and the Trust. The Trust represents that the Administrator has agreed to pay such compensation and expenses promptly upon receipt of statements therefore, and hereby directs Custodian to (i) send all statements for compensation to its attention care of Ultimus Fund Solutions, LLC at the following address: 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx 00000 (with a duplicate copy to the Trust at the address in Article X 3.), and (ii) accept all payments made by the Administrator in the Trust's name as if such payments were made directly by the Trust. Should the Administrator fail to pay or remit such compensation that is not in dispute to Custodian, Custodian will be entitled to debit the Accounts directly for such compensation. Custodian may charge such compensation and any expenses incurred by Custodian with respect to a Series in the performance of its duties against any money specifically allocated to such Series. Unless and until the Trust or the Administrator instructs Custodian to apportion any loss, damage, liability or expense among the various Series in a specified manner, Custodian shall also be entitled to charge against any money held by it for the account of a Series such Series’ pro rata share (based on such Series pro rata share of the net asset value of all Series at that time) of the amount of any loss, damage, liability or expense, including counsel fees, for which Custodian shall be entitled to reimbursement under the provisions of this Agreement. The expenses for which Custodian shall be entitled to reimbursement hereunder shall include, but are not limited to, the expenses of sub-custodians and foreign branches of Custodian incurred in
settling outside of New York City transactions involving the purchase and sale of Securities of the Trust.
7. Custodian has the right to debit any cash account applicable to a Series for any amount payable by the Trust with respect to such Series in connection with any and all obligations of the Trust, with respect to such Series, to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Trust shall not have honored any of its obligations to Custodian with respect to a particular Series Custodian shall have the right without notice to the Trust to retain or set-off, against such obligations, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of such Series and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to such Series in any currency or Composite Currency Unit. Any such asset of, or obligation to, that Series of the Trust may be transferred to Custodian and any BNY Affiliate in order to effect the above rights.
| 3. | Article X, Section 3 is hereby amended and restated as follows: |
3. Any notice or other instrument in writing, authorized or required by this Agreement to be given to the Trust shall be sufficiently given if addressed to the Trust and received by it at its office at 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx 00000, or at such other place as the Trust or the Administrator may from time to time designate in writing.
| 4. | A new Article X, Section 10 is hereby added to the Agreement as follows: |
10. For clarity, Custodian may (i) use information regarding the Trust in connection with certain functions performed on a centralized basis by Custodian and by BNY Affiliates and joint ventures and its and their service providers (including audit, accounting, risk, legal, compliance, sales, administration, product communication, relationship management, compilation and analysis of customer-related data and storage); (ii) disclose such information to such BNY Affiliates and joint ventures and to its and their service providers who are subject to reasonable confidentiality obligations; (iii) store the names and business contact information of the Trust’s employees and representatives relating to this Agreement on the systems or in the records of such BNY Affiliates and joint ventures and its and their service providers; and (iv) aggregate information regarding the Trust and the respective Series on an anonymized basis with other similar client data for Custodian’s and BNY Affiliates’ reporting, research, product development and distribution, and marketing purposes. This provision shall survive the termination of this Agreement.
| 5. | For the avoidance of doubt, Article X, Section 9 of the Agreement shall continue to have full force and effect with respect to the Agreement, including as it is modified by this Amendment. Accordingly, the parties acknowledge and agree that each Series is separate and distinct from the other Series of the Fund, and no Series of the Fund shall be liable for the obligations applicable to any other Series of the Fund now or in the future existing. |
| 6. | Schedule II to the Agreement is hereby replaced with Schedule II attached hereto. |
| 7. | For clarity, Xxxxxx Investment Trust is referred to as the “Trust” in the Agreement. |
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| 8. | The Fund, Custodian and Ultimus Fund Solutions, LLC each hereby represents and warrants to the others that it has full authority to enter into this Amendment upon the terms and conditions hereof and that the individual executing this Amendment on its behalf has the requisite authority to bind it to this Amendment. |
IN WITNESS WHEREOF, this Amendment to the Agreement has been executed as of the date first above written.
XXXXXX INVESTMENT TRUST,
on behalf of each Series acting individually and not jointly
By: /s/Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: President
THE BANK OF NEW YORK MELLON
By: /s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
ULTIMUS FUND SOLUTIONS, LLC
(with respect to the obligations of the “Administrator” set forth in the Agreement, as amended hereby, relating to fees)
By: /s/Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: CEO
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SCHEDULE II:
SERIES OF THE XXXXXX INVESTMENT TRUST
(Effective as of October 20, 2021)
Xxxxxx Convertible Bond Fund
Xxxxxx Convertible Plus Fund
Xxxxxx Intermediate Bond Fund
Xxxxxx Market Neutral Income Fund
